Lakshman Uraon, J.@mdashThe appellants in both the appeals being aggrieved by the order of conviction and sentence dated 16.10.1996 passed by the learned Additional Sessions Judge, Seraikella in Sessions Trial No. 113 of 1992 convicting and sentencing them imprisonment for life u/s 302/34, IPC and further to go RI for three years each of the offence punishable u/s 201/34, IPC and further to pay a fine of Rs. 300/- each and in default of payment of fine, to go further RI for three months, have preferred these appeals challenging the order of conviction and sentence passed by the learned Additional Sessions Judge, Seraikella.
2. The facts giving rise to these criminal appeals is that informant Sagar Munda (PW 9) in writing on 22.12.1991 informed the O/C, Chandial PS that his younger son Tete Munda was residing at Ranga Matia, PS - Chandil. On Thursday, Sukhram Munda, son of Bishun Munda (PW 3) and Siwan Munda (PW 4) of village Ranga Matia informed him that his younger son Tete Munda was murdered by Mangal Munda, Sukhram Munda (son of late Jarga Munda) and Boka Pahariya while he was returning on Tuesday with them from Gaur Bajar and reached near Kala Pathar village which is the village of the appellants at about 6.00 p.m. appellant Boka Pahariya, who is servant of accused Sukhram Munda (since absconding) took Tete Munda in the house of Sukhram Munda; saying that both Sukhram and Mangal Munda were calling him. Tete Munda went to the house of Sukhram Munda. After sometimes, they heard the voice. of Tete Munda calling them. When they went, they, saw Tete Munda lying dead.in the house of Sukhram Munda. Both these PW 3 Sukhram Munda and PW 4 Shiwan Munda out of fear fled away and informed the informant. Informant along with both these witnesses and the villagers went to village Kala Pathar. They did not find accused Sukhram Munda, Mangal Munda and Boka Pahariya. Etwa Munda (PW 6), Budhu Munda (PW 5) and Mangal Ram Munda (PW 7) of village Kala Pathar informed that they had seen the dead body of Tete Munda in the house of accused Sukhram Munda (since absconding). Informant also came to know that due to land dispute in between Mangal Munda (appellant) with the deceased, deceased Tete Munda was murdered. Informant came to know that the dead-body of Tete Munda was thrown in a drain in Makardah hill. Informant along with villagers went in search of the dead body and found the dead body of Tete Munda concealed in a drain at Makardah hill. Informant went to the Chandil PS and informed the police in writing. On that basis, Chandil PS Case No. 133 of 1991 dated 22.12.1991 under Sections 302/201/34, IPC was registered. After investigation, the IO submitted charge-sheet against both these appellants under Sections 302/201/34, IPC showing accused Sukhram Munda, son of Jarga Munda, of Kala Pathar as absconder.
3. The prosecution has examined nine witnesses in order to bring home the charges leveled against both the appellants. PW 1, Ashwani Kumar Mahto on 22.12.2001 went to Makardah hill along with O/C, Chandil PS where the O/C seized the dead body of Tete Munda from a drain and prepared inquest report on which he signed (Ext. 1). PW 2 Mohim Singh Munda is a hearsay witness who was informed by Mangra Munda, Etwa Munda and Budhua Munda that Tete Munda was murdered by Mohan (Mangal) Munda, Boka Pahariya and Sukhram Munda and concealed the dead body in the Makardah hill. He also signed Ext. 1/1 on the inquest report prepared by O/C, Chandil PS. PW 3 Sukhram Munda, son of Bishun Munda and PW 4 Shivan Munda, are the eye-witnesses who were returning from Gaur Bajar along with Tete Munda. PW 5 Budhu Munda, PW 6 Etwa Munda and PW 7 Manga Ram Munda are the villagers of Kala Pathar who informed the informant that both the appellants and absconding accused Sukhram Munda murdered Tete Munda in the house of Sukhram Munda of village Kala Pathar and threw the dead body in a drain at Makardah hill. PW 8 Dr. Tulsi Mahto conducted the post mortem examination on the dead body of Tete Munda on 23.12.1992, and prepared post mortem report in his pen and signature Ext. 2. PW 9 is the informant and father of the deceased who is a hearsay witness. In this case, the written information of Sagar Munda (PW 9) was not proved. So also the 10 of this case has not been examined.
4. The defence has not examined any witness, but the plea taken by them is that the appellants are innocent and due to land dispute, they have falsely been implicated in this case.
5. The learned Additional Sessions Judge relied the evidence of PW 3 Sukhram Munda, PW 4 Shivan Munda, PW 5 Budhu, Munda, PW 6 Etwa Munda and PW 7 Manga Ram Munda supported by the medical evidence of PW 8 Dr. Tulsi Mahto and convicted both the appellants and sentenced them to go imprisonment of life, three years and also to pay fine of Rs. 300/-each.
6. The conviction and sentence passed by the learned Additional Sessions Judge was assailed by learned counsel appearing on behalf of the appellants as amicus curiae to assist the Court on the ground that there is delay in lodging the information to the police. The alleged occurrence took place on 17.12.1991 at 6.00 p.m., but the informant (PW 9) informed the O/C, Chandil PS in writing on 22.12.1991 and the FIR was drawn on 22.12.1991 at 7.00 a.m. Informant (PW 9) is not the eyewitness of the alleged occurrence who was informed by Sukhram Munda and Shivan Munda who claimed to be the eye-witnesses after long delay. In this case, IO has not been examined. Hence the place where Tete Munda was murdered, as alleged, inside the house of Sukhram Munda (absconding) could not be established.
7. The learned APP has submitted that PW 3 Sukhram Munda and PW 4 Shivan Munda are the eyewitnesses who were returning home along with Tete Munda from Gaur Bajar and reached near the house of Sukhram Munda. Appellant Boka took Tete Munda to the house of accused Sukhram Munda. Both these witnesses when heard the voice of Tete Munda that he was being assaulted, went there and saw Tete Munda murdered. They saw all the three accused - Sukhram Munda, Boka Pahariya and Mangal Munda standing inside the house. Villagers PW 5 Budhu Munda, PW 6 Etwa Munda and PW 7 Manga Ram Munda also saw the dead body of Tete Munda in the house of Sukhram Munda. They also informed the informant and others that the dead body of Tete Munda was concealed in a drain at Makardah jungle. The doctor PW 8 who conducted post mortem examination, has found abrasions, lacerated wounds caused by hard and blunt substance within seven days (plus minus two days) from the time of post mortem examination which was conducted on 23.12.1991 at 11.00 a.m. The time of death, which is seven days (plus minus two days) if taken into consideration in minus side, then five days corresponds to the date of occurrence when Tete Munda was murdered.
8. In the present case, PW 3 Sukhram Munda and PW 4 Shivan Munda are the important eye-witnesses who are of village Rangamati where deceased Tete Munda was residing. Informant Sagar Munda (PW 9) who is father of the deceased, was residing at village Maildih, PS - Muro, District -Ranchi. Both these witnesses, PW 3 and PW 4, were returning home along with Tete Munda from Gaur Bajar on Tuesday and reached village Kala Pathar in front of the house of accused Sukhram Munda (absconding) at 6.00 p.m. Appellant Boka Pahariya took Tete Munda to the house of Sukhram Munda and Mangal Munda. Both these witnesses, PW 3 and PW 4, remained standing on the road. After sometimes, they heard alarm and went to the house of Sukhram Munda where they found Tete Munda murdered having bleeding injury on his head. By the side of the dead body they saw Boka Pahariya, Sukhram Munda and Mangal Munda. When all these accused threatened these witnesses, then they fled away. At night, these witnesses did not inform anybody. Next morning they went to Maildih to inform Sagar Munda,, (PW 9), father of the deceased. They could not find him. Again on Thursday they went to village Maildih and met Sagar Munda and informed about the alleged occurrence. They along with Sagar Munda went to village Kala Pathar and searched the dead body of Tete Munda, which was found in a drain at Makardah hill. Thereafter they went to police station arid informed in writing. That written report of the informant PW 9 Sagar Munda has not been brought, on the record as the IO has not been examined, nor Ashwani Kumar Mahto of village Palna was examined, who scribed the written report. PW 3 found only Sukhram, Mangal and Boka in the house of Sukhram at the time of alleged occurrence in their house where the dead body of Tete Munda was seen. PW 3 claims that he and Shivan (PW 4) were standing a a distance of 200 yards on the road from the house of accused Sukhram Munda and stayed there for about half an hour. PW 4 Shivan Munda has deposed that he and Sukhram Munda (PW 3) remained standing on the road for about one hour. During that period, the villagers were returning from the Hat through the road. He has deposed that in the house of accused Sukhram Munda, he saw wife and children of accused Sukhram Munda inside the house. He and PW 3 did not inform the nearby villagers of village Kala Pathar who are PW 5, PW 6 and PW 7 - Budhu, Etwa and Manga Ram respectively. As per statement of this witness, police went to village Ranga Mati on Friday and took them in search of the dead body called by Boka Pahariya, accused, who took them to the police. PW 3 Sukhram Munda has also supported this statement of PW 4 that on Tuesday they did not find father of the deceased, but they found brother of the deceased namely Ranga and his wife who were informed about the murder of Tete Munda. But they did not go to Ranga Mati along with them. As per statement of this witness also, he along with Mukhia, appellant Boka Pahariya and informant Sagar Munda went in search of the dead body of Tete Munda. The evidence of these eye- witnesses - PW 3 and PW 4 is very clear that appellant Boka Pahariya was the person who took PW 3 and PW 4 to the police when the police had gone to the village and along with the police and these witnesses, appellant Boka Pahariya was also present in searching the dead body of Tete Munda. In course of search, first of all appellant Boka Pahariya saw the dead body lying in the drain. On the same day, the information in writing was given to the police. These two eye-witnesses PW 3 and PW 4, did not inform the nearby villagers of village Kala Pathar who are PW 5 Budhu, PW 6 Etwa and PW 7 Manga Ram Munda. They also did not inform anybody at village Ranga Mati or Maildih. They were in search of Sagar Munda, father of the deceased. On Wednesday when brother of the deceased, namely Ranga, and his wife were informed about the alleged murder of Tete Munda by PW 3 and PW 4, even then Ranga Munda did not accompany them in search of the dead body of Tete Munda, nor they informed anyone else in the village, nor to the police. The conduct of Ranga is quite unnatural that he remained silent when his brother Tete Munda was murdered.
9. There is delay in informing the police. The alleged occurrence took place on 17.12.1991, but the information in writing was given to the O/C, Chandil PS on 22.12.1991. The evidence of PW 8 Dr. Tulsi Mahto is very clear that prior to five days from the date of post mortem examination on 23.12.1991, Tete Munda might have been murdered. The eye-witnesses PW 3 Sukhram Munda and PW 4 Shivan Munda never informed anybody either of village Ranga Mati or Kala Pathar about the murder of Tete Munda by the appellants and another absconding accused Sukhram Munda. On the other hand, their evidence is clear that appellant Boka Pahariya was present before the police and was also in their company in search of the dead body of Tete Munda. PW 5 Budhu Munda is a hearsay witness. He was not present at his home at village Kala Pathar at the time of the alleged occurrence. He had been to Hatia and when he returned at night, he was informed by his wife. He saw the dead body of Tete Munda in the house of Sukhram Munda in the next morning. PW 6 Etwa Munda and PW 7 Manga Ram Munda of village Kala Pathar, who are alleged to have informed PW 2 Mohim Singh Munda about the murder of Tete Munda by these appellants, were tendered by the prosecution as they had no personal knowledge about the alleged occurrence. They have not deposed that they had informed PW 2 Mohim Singh Munda about the alleged occurrence. Hence the evidence of PW 2 Mohim Singh Munda also does not carry any importance as he is hearsay witness and the witnesses who informed him, were tendered by the prosecution. As I have stated that PW 9 Sagar Munda, father of the deceased, is also a hearsay witness, who was informed about the alleged occurrence by PW 3 Sukhram Munda and PW 4 Shivan Munda.
10. The dead body was found in a drain at Makardah hill on 22.12.1991 at 1.00 p.m. So the place where the dead body was found is not in dispute. But the defence has denied that the appellants caused murder of Tele Munda inside the house of Sukhram Munda. Due to non-examination of the IO, the written report of the informant Sagar Munda (PW 9) was not brought on the rceord. So also the place where Tete Munda was murdered inside the house of Sukhram Munda (absconding accused) was also not established. The plea is that due to land dispute they have falsely been implicated in this case. The land dispute with the deceased and appellant Mangal Munda and his brother Sukhram Munda (absconding) has also been admitted by the prosecution. Thus, enmity was there in between the deceased and the appellant Mangal Munda and his brother Sukhram Munda (absconding). Appellant Boka Pahariya is the servant of Mangal Munda. He was present along with police, the informant and the eye-witnesses - PW 3 and PW 4, in search of the dead body of Tete Munda. The delay in informing the police of five days has not been explained by the prosecution. The conduct of PW 3 and PW 4 is not informing anybody of village Kala Pathar or Ranga Mati is also suspicious. They were simply searching PW 9 Sagar Munda, father of the deceased. The brother of the deceased Ranga Munda who was informed on the next day, did not take any step either to inform the police or to accompany PW 3 and PW 4 to go to village Kala Pathar in search of the dead body of Tete Munda. PW 8 Dr. Tulsi Mahto conducted post mortem on the dead body of Tete Munda on 23.12.1991 at 11.00 a.m. and found;
Externally :
(A) Abrasions :
(i) 3.5 cm. x 2.5 cm. over the right thigh upper most part laterally
(ii) 2 cm. x 1 cm. over the right fore arm
(B) Lacerated wounds :
(i) 7 cm. x 2 cm. x bone deep over the left occipito parietal region of head with defused contusion of surrounding scalps
Internally :
There is right-sided subdural haemorrhage with blood clot 100 gram and contusion of left side brain underneath the lacerated wound.
The doctor opined that all the injuries were caused by hard and blunt substance. The death was due to head injury since 7 days plus minus, from the date and time of post mortem examination. Post mortem report is Ext. 2. He also opined that injuries A and B arc also possible by fall on hard substance like stone.
11. In this present case I find that father of the deceased PW 9 is a hearsay witness. PW 3 and PW 4 Sukhram Munda and Shivan Munda claimed to be the eyewitnesses as they were returning from Gaur Bajar. When they reached near the villager of the appellants i.e. Kala Pathar, then appellant Boka took them to the house of accused Sukhram Munda. They saw the dead body of Tete Munda inside the house of accused Sukhram Munda. Even then, they did not inform the villagers of Kala Pathar or Ranga Mati, rather they were in search of PW 9 Sagar Munda, father of the deceased, at village Maildih. There is delay in informing the police i.e. also in writing. The written report was not brought on record. The conduct of PW 2 and PW 3 and brother of the deceased, namely Ranga Munda, also creates doubt in the prosecution story. There is infirmity in the prosecution case as the IO has not been examined who would have found objective finding i.e. blood smeared with cow dung in the house of accused Sukhram Munda and also the weapon of assault could have been recovered and seized. There were three accused inside the house of the appellant. They were not seen holding any weapon inside the room by the PW 3 and PW 4. Rather, they simply saw the dead body of Tete Munda. The injury report shows that deceased Tete Munda sustained two abrasions and one lacerated wound caused by hard and blunt substance which are also possible by fall on hard substance like stone. No one saw as to who removed the dead body of Tete Munda from the house of accused Sukhram Munda and threw the dead body in a drain at Makardah jungle. In view of the above considered evidence available on record, I find that the evidence of PW 3 and PW 4 could not be substantiated by any other reliable, independent and trustworthy witnesses of the P/O village Kala Pathar. Due to non-examination of the 1O, the place of assault and murder of Tete Munda was also not brought on record. In view of these legal infirmities, I come to the conclusion that the learned Court below was misled in coming to the conclusion and finding the guilt proved against these appellants.
12. In the result, I find merit in both these appeals and accordingly, both these appeals are allowed. The order of conviction and sentence passed by the learned Additional Sessions Judge, Seraikella in Sessions trial No. 113 of 1992 is hereby set aside and the appellants are acquitted in this case. As both the appellants are in custody, hence it is ordered that they be released forthwith from custody if not wanted in any other case.
Vishnudeo Narayan, J.
13. I agree.
